Punjab

Ludhiana

CC/15/305

Madhu Bala - Complainant(s)

Versus

On Dot courier & Cargo Ltd - Opp.Party(s)

Gaurav Joshi Adv.

21 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 305 of 06.05.2015

Date of Decision            :   21.04.2016 

 

Madhu Bala, Proprietor of M/s. Naveen Fashions, Main Bazar, Ahmedgarh.

….. Complainant

                                                         Versus

 

1.On Dot Couriers & Cargo Limited, Head Office at 1^st Floor, Zuco Complex, Vishwakarma Chowk, Ludhiana.

2.On Dot Couriers & Cargo Limited, 8/42, Kirti Nagar, Industrial Area, New Delhi-110015.

…Opposite parties 

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

MRS.          VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :          Sh.Ajay Goyal, Advocate

For OPs                          :          Sh.Prabhjot Pal Singh, Advocate.

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant claims to have sent certain goods weighing 7 kg of worth of Rs.15,090/- to M/s J T N, Shop No.1, Bhavani Plaza, Bhavani Shanker Road, Dadar (W), Mumbai-400028, through OP1 vide receipt No.159111527 dated 22.01.2015. A receipt in that respect was duly issued by OP1 after charging a sum of Rs.560/- from the complainant. At the time of receipt of delivery of the goods, OP1 assured the complainant that the said parcel will reach at its destination in intact condition within 7 days. However, to the dismay of the complainant, the said goods/parcel did not reach at its destination despite lapse of more than 1 ½ months. Complainant contacted Op1 many times, who all the times procrastinated the matter. As per the details shown on the website of OP1, the said goods reached at Mumbai on 27.01.2015, but the same were not delivered to the addressee till the filing of the complaint. Addressee now has refused to take the delivery of the goods on the ground that the season is off due to which, the said goods are of no use for him. Complainant claims to have suffered loss of Rs.15,090/-, due to deficiency in service on the part of OPs. Legal notice dated 9.3.2015 was sent for calling upon OPs to pay a sum of Rs.15,090/- with interest @24% p.a. Compensation of Rs.1 lac for mental harassment also sought.

2.                OPs appeared and filed their joint written statement by claiming interalia as if the services hired for commercial/business purposes, due to which, complaint is not maintainable. Besides, it is claimed that substantial evidence required to be produced and as such, remedy available with the complainant is to approach the Civil Courts. Further, it is claimed that complaint is not maintainable in the present form because the complainant has not approached this Forum with clean hands. Complainant also alleged to be estopped by his own act and conduct from filing the present complaint. Allegations of deficiency in service or of adoption of unfair trade practice specifically denied. Rather, it is claimed that consignment of OPs caught at Mumbai for want of payment of  octroi  and  whenever, the goods were released,  the same were        offered for delivery to the party at destination. However, the party concerned refused to take the delivery of the goods and thereafter, goods were returned back to the complainant, who too refused to accept the same, but started demanding whimsical amount from OPs. Complainant has no cause of action. Complaint alleged to be filed for abusing the process of law. Each and every other averment of the complaint denied by praying for dismissal of the complaint with costs.

3.                Complainant to prove his case tendered in evidence affidavit Ex.CA along with documents Ex.C1 to Ex.C5 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Amandeep Singh, Area Manager along with documents Ex.R1 and Ex.R2 and thereafter, closed the evidence.

5.                          Written arguments in this case has been submitted by Ops only, but oral arguments addressed by counsel for both the parties. Records gone through minutely. 

6.                 It is vehemently contended by counsel for OPs through written as well as oral arguments that complainant is not a consumer because services of OPs were availed for commercial purposes i.e. for transport of goods in connection with business dealing. Reliance for the purpose is placed on  the law laid down in          case titled as Birla Technologies Limited vs. Neutral Glass and Allied Industries Limited-(2011)1-Supreme Court Cases-525. After going through ratio of this case, it is made out that in case, deficiency in service in respect of the goods purchased for commercial purposes alleged, then complaint is not maintainable because the services availed for commercial purposes, due to which, customer concerned excluded from the purview of Consumer Protection Act. After going through the ratio of above cited case, it is made out that software of worth of Rs.36 lac was purchased and that is why the transaction was held to be commercial transaction. However, present is a case, in which, goods of worth of Rs.15,090/- alone were sent through courier services of OPs as revealed by Ex.R2 as well as receipt Ex.C2. Ops charged Rs.560/- from the complainant through receipt Ex.C2 on 22.01.2015 for sending the parcel prepared in the name of M/s J.T.N. at Mumbai. So, the goods sent through courier services were of not much value, as is case disclosed by above cited case. In view of this, it is contended by the counsel for the complainant that benefit of ratio of above cited case is not available to the OPs. However, the goods in this case were sent by a proprietorship concerned to another firm known as M/s J.T.N. at Mumbai and as such, virtually the goods were sent for commercial venture. It is not mentioned in the complaint anywhere that goods were sent as gift or on account of gratuitous transaction   and as such virtually the facts are concealed in the complaint qua the purpose for which, the goods were sent by the complainant firm to another firm at Mumbai. When such is the position, then inference is obvious that virtually the goods were sent by the complainant firm to M/s J.T.N. Firm at Mumbai in relation to commercial purposes or with respect to business transaction. As per law laid down in case of Punjab National Bank vs. M/s Bhaskar Textiles-2015(1)CLT-89(N.C.), if complainants sends the goods sold by them to another firm by transporter and papers were sent through OPs firm and bankers required to collect the payment before releasing bilti to the firm, then services of OPs virtually were availed by the complainant in connection with commercial purposes i.e.in course of business transaction, due to which, consumer complaint will not be maintainable. In view of non-mentioning of the purpose for sending the goods by proprietorship concerned to a firm, it has to be held that complainant has failed to prove that the goods were  sent for earning livelihood.     That fact even not pleaded in the complaint at all. The natural circumstances are that as and when a firm sends the goods to another firm at remote place, then inference will be obvious that goods are sent in connection with business transaction. In view of this natural course of events, it has to be held that virtually the goods were sent in relation to commercial purposes and as such, complainant is not a consumer. Being so, complaint not maintainable and same merits dismissal, even if receipt Ex.C1 may be showing that goods sent from Ludhiana to Mumbai on 22.1.2015 reached at  destination of delivery on 27.1.2015. It may be mentioned here that counsel for the OPs suffered statement on 18.4.2016 to the effect that OPs willing to handover the dispatched bundle to the complainant today itself. But today i.e.on 21.4.2016. Sh.Ajay Goyal, Advocate for complainant suffered statement that said bundle will not be accepted by the complainant because cloth contained in the bundle has gone out-dated. In view of that statement of counsel for the complainant       , it is obvious that complainant not willing to accept the bundle at present because of the fact that price of the cloth has gone down, due to its going outdated. Only a businessman can think on these lines. Had the goods contained in the bundle would not have been sent for commercial purposes, then a consignor definitely would have accepted the bundle of cloth. Complainant of this case is a proprietor of M/s Naveen Fashions, which means that complainant carrying on business of fashion items. A person carrying on business of fashion items will send the items to Mumbai from Ludhiana only for earning profit, and in case loss sustained, then the business minded fellow will not receive back the dispatched bundle. That seems to be the reason, due to which, the bundle is not acceptable to the complainant now because of cloth contained therein going outdated. As deficiency in service on the part of OPs even not proved and as such, complaint merits dismissal.

7.                Therefore, as a sequel of the above discussion, complaint stands dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules. 

8.                File be indexed and consigned to record room.

 

                   (Vinod Bala)                                 (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:21.04.2016

Gurpreet Sharma.